Developments in the retrial of Lyle and Erik Menendez from April 1-5.
APRIL 1
The sister of Jose Menendez said she wishes she'd told authorities that her brother and his wife were psychologically abusing their children. Marta Cano told the jury that Lyle and Erik would not be in court today is she had reported the abuse.
Cano also testified that it would further destroy the already heartbroken family if the brothers are sentenced to death by lethal injection.
Her testimony was followed by that of her former husband, who is one of the only eyewitnesses to the allegations of physical abuse in the Menendez home.
Peter Cano testified that he saw Jose punch 5-year-old Lyle in the stomach for wetting his pants. And when Lyle was 11 years old, Cano said that Jose kicked him out of the car and made him walk home after losing a tennis match. Cano said he confronted Jose about the incidents but Jose told him it was none of his business.
Peter Cano's testimony was excluded from the guilt phase of the retrial, even though it was allowed in the first trial. Judge Stanley Weisberg ruled the incidents were irrelevant since Lyle did not take the witness stand and therefore the defense could not link what happened to him as a child to his state of mind at the time of the murders.
APRIL 2
After several days of testimony from Menendez family members and friends of the brothers, the defense introduced medical testimony about the psychological abuse of children.
The jury heard from Dr. Stuart Hart, a professor of educational psychology at the University of Indiana. He testified about the effects of psychological mistreatment of children, telling the jurors that psychological abuse often is often worse than physical abuse because it happens every day.
He said Kitty and Jose Menendez rejected and terrorized their children, kept them away from friends and failed to show any signs of affection, such as hugging and cuddling. Hart testified about some specific incidents, in which he said Erik was psychologically mistreated. But he did not give specific examples of Lyle's abuse.
Hart went on to say that Erik has changed in positive ways since his arrest in 1990. However, he was not asked the same question about Lyle. That's probably because of the evidence discovered against Lyle since his arrest. The evidence included suspected escape plans found in his jail cell and letters he wrote two people telling them how to testify. If Hart had testified that Lyle is capable of changing in positive ways, the prosecution would have introduced these incidents on cross-examination.
APRIL 3
A Catholic priest testified Wednesday for the defense in the penalty phase of the Menendez trial and spoke of Erik as having been distraught since the killing of his parents.
Father Ken Deasy, who met the family a year before the murders, has been visiting Erik in jail a few times a month since his arrest. Erik confessed killing his parents to the priest in 1990. According to Father Deasy, he did so because he was afraid of them, his parents abused him, and his father molested him.
Erik questioned the priest about the chances that his parents or God could ever forgive him for taking the life of his parents. "Do not limit God's forgiveness to our own inability to forgive." Father Deasy said he told Erik. God gives "unconditional love" he said, echoing a central theme of the approaching Catholic holiday of Easter.
But Father Deasy did not mention Lyle Menendez, and it is unclear why Lyle's attorneys opted not to question him. A "gag order" imposed by Judge Stanley Weisberg prevents lawyers from commenting on the trial outside of court until after the penalty phase.
APRIL 4
The illustrious defense lawyer Leslie Abramson may have lost all credibility with the jurors who must decide between life and death for her client, Erik Menendez.
In a stunning courtroom moment, the psychiatrist who has treated Erik Menendez since his arrest admitted that he doctored his notes of those sessions at the direction of Abramson. Dr. William Vicary conceded under cross-examination that he omitted from his notes an entire section containing possibly incriminating statements by Erik Menendez.
It happened when prosecutor David Conn asked Vicary whether Erik told him: "A week prior [to the killings] he [Erik] had conversations about what it would be like to live without his parents." Vicary said that his notes did not say that. Defense attorneys asked for a page cite. Conn approached the witness stand to compare his notes with Vicary's and realized that Vicary's notes were different. Conn demanded to know why.
Said Vicary, "I did rewrite that page and left out that section at the request of defense counsel."
Conn asked, "Who requested that?"
Vicary replied, "Leslie Abramson. . . . She said this was prejudicial and out of bounds."
People throughout the courtroom seemed shocked -- spectators, reporters, prosecutors and jurors.
Conn continued his line of questioning. He got Vicary to admit that Erik once told him his father's homosexual lover came to the Menendez house two days before the killings and told the brothers their parents were going to kill them. Vicary testified that Erik later told him that was a lie. But Erik's admission that he had lied does not appear in Vicary's notes. And it is still unclear whether that section also was omitted from Vicary's original notes. That question most likely will be answered on Friday, when Conn is expected to continue his cross-examination of Vicary.
Shortly after the incident, Judge Weisberg recessed court for lunch. After lunch the defense met with the judge in a closed courtroom without prosecutors. Later, prosecutors were admitted into the courtroom but the public remained outside. An hour later a bailiff informed everyone that court would be in recess for the rest of the day.
This incident could have major ramifications. Abramson will no doubt lose credibility with the jury. She may now be facing questions such as whether to continue as Erik's counsel; whether her co-counsel, Barry Levin, will conclude the penalty phase; and whether she can deliver a closing argument to this jury, which may have lost all confidence in her and her client.
Furthermore, Lyle Menendez's case may have been severely prejudiced by something over which he had no control. Surely Lyle's lawyers will ask for some sort of jury admonishment which would separate him from the incident. But he may already be damaged, as the jury could paint the brothers with the same brush. In the past, Lyle's attorney, Charlie Gessler, has repeatedly renewed his motion for separate trials. If he hasn't done so already (in the closed hearing), he most likely will ask again. This would be a huge appeal issue for the defense, which has urged the judge since the beginning that their clients could have fair trials only if they were tried separately.
Abramson would not speak to reporters outside the courthouse. She, like the other lawyers in the case, is under a gag order by the judge.
Prosecutors now have copies of the original notes and the doctored notes. They are expected to quiz Vicary on Friday about any other omissions or alterations they can find.
Notwithstanding the fact that Vicary doctored his notes, the notes themselves contain possibly incriminating evidence against Erik. For example: Erik said Jose Menendez forbade him to attend a tennis camp four days before the killings. The notes say Erik complained that his father refused to continue paying for his tennis instruction and would not let him take a drama class. One of the first things Erik did after killing his parents was to hire a private tennis coach. The notes also say Erik told Vicary that "Lyle Menendez said wait a week and he [Erik] said I can't let another week go by."
APRIL 5
Defense lawyer Leslie Abramson invoked her Fifth Amendment privilege not to incriminate herself and refused to answer Judge Stanley Weisberg's questions about possible misconduct.
On her lawyer's advice, Abramson refused to answer two questions about a set of notes, which she allegedly ordered a psychiatrist to alter and then turned over to prosecutors. Judge Weisberg asked her which copy of the notes she had turned over to prosecutors in 1993 -- the original or the doctored version -- and why there were redactions in the notes. Abramson responded to both questions, "I assert the privilege."
On Thursday the psychiatrist, Dr. William Vicary, who has treated Erik Menendez since his arrest, admitted that he doctored his notes of those sessions at the direction of Abramson.
After a marathon day of hearings outside the jury's presence, Judge Weisberg rejected motions for mistrials for both brothers on the grounds of ineffective assistance of counsel on the part of Abramson. Weisberg ruled that Lyle Menendez could not make such an argument because Abramson is not his lawyer. The judge also ruled that Abramson's co-counsel, Barry Levin, is perfectly capable of taking over Erik's case.
Before taking the Fifth, Abramson said her main concern -- her ethical obligation -- is to assure that Erik gets a fair trial. "Whether I have committed misconduct or not is irrelevant," she said. She added that that is something to be dealt with another time and in another forum, "soon."
The judge pointed out that jurors would be instructed not to hold Abramson's actions against the brothers. But attorneys for both sides said their clients already were irreparably prejudiced and could not continue to get a fair trial from this point on.
Lyle Menendez's attorney, Charlie Gessler, was especially upset, saying he never even knew there were two sets of the psychiatrist's notes until Thursday. He also said he did not want Abramson to put Vicary on the stand in the first place. But Weisberg pointed out that Gessler never formally objected to Vicary's testimony.
Gessler complained that if Lyle had had a separate trial, none of this damaging evidence ever would have come in. He said the jury deciding whether Lyle should live or die is now unfairly contaminated with the appearance of "misconduct, tampering with evidence, or manufacturing a defense." He said it may appear to jurors that Lyle is "part of an effort to manufacture a defense."
On Friday, prosecutors came to court with the answer to one of Weisberg's questions: David Conn said that Abramson in 1993 turned over to prosecutors the redacted version of the notes. That is the copy prosecutors have had for three years. About two months ago prosecutors needed to review the notes but had left them somewhere in their offices downtown. So they got a copy from Dr. Park Dietz, their psychiatric expert, who had received a copy included in a big box of materials from the defense. (By the way, when Dietz testified at the trial, he admitted on the stand that he had never read Vicary's notes.) Somehow, Dietz had a copy of the originals. Prosecutors allege that Abramson turned over the originals by accident, and had it not been for this slip, no one ever would have noticed the discrepancy.
Even if the jury does not consider Abramson's actions when making its decision, both brothers may suffer. That's because the newly discovered original notes contain possibly incriminating evidence.
One section says that a week prior to the killings, Erik was talking about what it would be like to live without his parents. (Vicary testified Friday that those conversations were with Lyle.) Of course, the defense could easily have argued that what they meant was what it would be like to live at college, away from home. But here's the problem: Vicary testified that Abramson told him to delete it because it was "too prejudicial."
Another section says Erik and Lyle were discussing doing something "drastic." According to the notes, Lyle wanted to wait a week, but Erik said he could not let another week go by. The notes do not specify what "drastic" referred to.
Still another deleted section says Erik told Vicary that Jose Menendez's homosexual lover came to the house two days before the killings and told the brothers that their parents were going to kill them. Vicary testified that Erik later admitted that was a lie.
